Madras High Court
The Special Commissioner And Director ... vs M.Arumugam on 24 July, 2007
Equivalent citations: AIR 2007 (NOC) 2489 (MAD.) FULL BENCH
Author: A.P.Shah
Bench: A.P.Shah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2007
C O R A M :
THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE
THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN
AND
THE HONOURABLE MR.JUSTICE P. JYOTHIMANI
W.A. No.326 of 2007
The Special Commissioner and Director of Survey and Settlement
Chepauk
Chennai 5. ..Appellant
Vs
M.Arumugam ..Respondent
PRAYER : Appeal filed under Clause 15 of the Letters Patent
against the order, dated 14.7.2006 made in W.P.No.17082 of 2006
on the file of this Court.
For appellant : Mr.Raja Kalifulla, GP, assisted by Mr.V.R.Thangavelu, GA (Writs)
For respondent : Mr.R.Thiagarajan, SC for Mr.M.Muthappan
J U D G M E N T
(JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE) Whether the Director of Survey and Settlement is vested with suo motu power of revision under Section 5(2) of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act 26 of 1948) (for brevity sake, hereinafter will be referred to as 'the Act') is the issue referred to this Larger Bench. It is not necessary to traverse upon the factual features. Suffice it to say that the Director of Survey and Settlement in exercise of suo motu power under Section 5(2) of the Act cancelled the grant of patta issued in favour of the respondent by the Assistant Settlement Officer. In the writ petition preferred against the order of the Director of Survey and Settlement, the learned Single Judge referred to a decision of the Division Bench in the case of The Director of Survey and Settlement -vs- R.Ramadoss (1992 (2) L.W.265), wherein the Division Bench (consisting of Nainar Sundaram and Thanikkachalam, JJ.) has held that there is no suo motu power of revision under Act 26 of 1948 in the Director of Survey and Settlement under Section 5(2) of the Act. Following the said decision, the learned single Judge allowed the writ petition and set aside the order passed by the Special Commissioner and Director of Survey and Settlement.
2. In W.A.No.326 of 2007 preferred by the State Government against the order of the learned Single Judge, the learned Government Pleader relied upon a decision of this Court in M.Veeraswamy -vs- Special Commissioner and Commissioner of Land Administration (1996 Writ L.R. 554), wherein the Division Bench (consisting of Srinivasan and S.M.Abdul Wahab, JJ.), while interpreting Section 7(c), which is pari materia to Section 5(2), held that the said Section confers power on the Board to cancel or set aside any order passed by the lower authority and certainly it is open to the Board to exercise the said power ''suo motu" whenever it is found necessary. Since there are conflicting views of the two Division Benches of this Court, the matter has been referred to a Larger Bench.
3. Learned Government Pleader Mr.Raja Kalifulla, appearing for the appellant, submitted that a bare reading of Section 5(2) of the Act would indicate that the power of the Director to revise or cancel any order of the Settlement Officer is plenary and such power could be exercised either on an application by an aggrieved person or suo motu. He placed heavy reliance on an unreported judgment in the case of David Pillai v. The Settlement Officer, Madurai (Writ Appeal No.1296 of 1986 decided on 18.7.1989), wherein the Division Bench has held that when a power is conferred upon the Director under Section 5(2) of the Act to revise or cancel any order passed by the Settlement Officer, such a power could be exercised suo motu. On the other hand, Mr.R.Thiagarajan, learned Senior Counsel appearing for the respondent contended that the State Government has framed rules in exercise of the power under Section 67(2)(b) of the Act and since the rules enacted prescribe a procedure for making an application and also lay down the limitation for filing such application, we must take it that it is the only way and method in and by which the power of revision under Section 5(2) of the Act is available for the Director and he cannot travel beyond that. He relied upon the oft-quoted dicta in Taylor v Taylor (1875 (1) Ch D 426) that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all.
4. In order to appreciate the rival arguments advanced at the Bar, it is necessary to consider the scheme of the relevant provisions of the Act. The Preamble of the Act states that the Act is enacted to provide for the repeal of the permanent settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras and the introduction of the ryotwari settlement in such estates. Therefore, the main object or the purpose of the Act is to repeal the permanent settlements and acquire the rights of the landholders, i.e. all the estates of the intermediaries like Zamindars, Inamdars, etc on payment of compensation and to convert all landholdings in such estates into ryotwari settlements. Section 3(d) of the Act and the proviso thereto are as follows:
''3. Consequences of notification of estate.- With effect on and from the notified date and save as otherwise expressly provided in this Act -
(a) ...
(b) ...
(c) ...
(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents, relating to the estate which the Government may require for the administration thereof:
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta."
Grant of ryotwari patta is dealt with under Section 11 of the Act, while the grant of patta to the landholder comes under Sections 12, 13 and 14 of the Act. Though hierarchy of authorities like the Tribunals and Board of Revenue have been constituted for the purpose of deciding the question relating to grant of patta under the aforesaid provisions and Section 64-C of the Act provides finality to the orders passed under the Act, yet that finality has been held to be only for the ''purposes of the Act". In State of Tamil Nadu -vs- Ramalinga Swamigal Madam (AIR 1986 SC 794), it was held that the Civil Court's jurisdiction to adjudicate upon the true nature or character of the land is not ousted under Section 64-C of the Act by reason of the Settlement Officer's decision to grant or refuse to grant a patta under Section 11 read with the proviso to Section 3(d) of the Act. It was held that the Act is intended to serve the revenue purposes of the Government, by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and that in that process, if necessary, to deal with the claims of occupants of lands, nature of the lands, etc. only incidentally in a summary manner. The order made under Section 11 of the Act granting or refusing to grant patta must be regarded as having been passed to achieve the purpose of the Act, viz., revenue purpose. The grant of patta has never been understood as equivalent to conferment of title to the property. The question relating to title to the property can rightly be agitated before a Civil Court and such a suit is not barred or precluded under any of the provisions of the Act.
5. Sub-section (2) of Section 5 of the Act reads as follows:
''Every Settlement Officer shall be subordinate to the Director and shall be guided by such lawful instructions as he may issue from time to time; and the Director shall also have power to cancel or revise any of the orders, acts or proceedings of the Settlement Officer, other than those in respect of which an appeal lies to the Tribunal."
6. On a bare reading of the provisions of Section 5(2) of the Act, it is clear that the power conferred on the Director by Section 5(2) to cancel or revise any of the orders, acts or proceedings of the Settlement Officer is very wide. In the first place, the Director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. For example, if the Director comes to know that contrary to the scheme of the Act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the Act, then to set right that mistake, the Director should be enabled to exercise his power so as to effectuate the scheme of the Act and to implement the purpose behind the Act. The fact that the rule making authority has prescribed procedure in exercise of the powers under Section 67 for making an application to the Director does not mean that the suo motu power which is explicit in Section 5(2) of the Act is in any way curtailed or taken away. We are, therefore, unable to appreciate the contention of the respondent that making an application is sine qua non for invoking the power under Section 5(2) of the Act.
7. In Ram Swarup v. Shikar Chand, AIR 1966 SC 893, the Supreme Court while construing a similar provision contained in Section 7-F of the U.P Act 3 of 1947 observed as follows:
"Section 7-F provides for the revisional powers of the State Government in very wide terms. It reads thus:
"The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in S.3 or requiring any accommodation to be let or not to be let to any person under S.7 and may make such orders as appears to it necessary for the ends of justice."
It is clear that the power conferred on the State Government by S. 7-F to revise the orders passed by the Commissioner under S.3(3) is very wide. In the first place, the State Government need not necessarily be moved by any party in that behalf. It may call for the record suo motu and it can exercise its powers in the interest of justice. In other words, whenever it is brought to the notice of the State Government either by a party aggrieved by the order passed by the Commissioner or otherwise, that the order passed by the Commissioner is unfair or unjust, the State Government may in the ends of justice pass an appropriate order revising the order made by the Commissioner. That in brief, is the scheme of the relevant provisions of the Act relating to the grant of permission of the landlord to sue his tenant in ejectment."
(emphasis supplied)
8. In Sadiqua Begum v. Board of Revenue, 1985 (2) SCC 11 by virtue of Section 6 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 all transfers made by proprietors at any time after March 16, 1950 were deemed to be void unless declared valid by the Collector on a proper application made to him. The transferees, in view of the aforesaid provisions, filed applications before the Collector who validated their transfers. Against the order of the Collector a revision was taken by the Commissioner in exercise of his powers under Section 50 of the M.P. Land Revenue Code, 1959. The transferees objected to the jurisdiction of the Commissioner on the ground that he had no power to revise the order of the Collector. This contention was rejected by the Commissioner and hence, a revision was taken to the Board of Revenue which confirmed the view of the Commissioner. The writ petition filed before the High Court was also rejected. The Supreme Court while dismissing the appeal held as follows: - (SCC page 13) "4. The sheet-anchor of the contention of the learned Counsel for the appellants before us was that even assuming that the two statutes (Abolition Act and the Code) were statutes in pari materia, they possess two clear-cut and separate powers, that is to say, no suo moto revision could lie to the Revenue Officers unless a revision or appeal was filed before the Commissioner by the party.
5. It is not disputed in this case that the Commissioner and Board of Revenue passed the order in exercise of their revisional powers. It would, however, appear that under the provisions of the Abolition Act as also the Code, both the Commissioner and the Board were appellate as also revisional authorities. Thus, when two powers were conferred on the said officers in a sort of a combined capacity, it cannot be said that merely because the formality of filing a regular appeal before the Commissioner or the Board was not adopted, a suo moto revision would not lie. The contention could have some substance if there would have been any statutory embargo on the hierarchy of the officers mentioned above to entertain any revision against an order passed by one authority without filing an appeal before it."
(emphasis supplied)
9. In Dinabandhu v. Jadumoni, AIR 1954 SC 411, the Court was concerned with the proviso to Section 85 of the Representation of People Act, 1951, which reads as follows:
" Provided that if a person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition within the period prescribed therefore, the Election Commission may in its discretion condone such failure."
It was in exercise of the discretion vested in it under this provision that the Election Commission condoned the delay suo motu. The contention of the appellant was that the order was not valid, because it was passed not on any application of the party praying that the delay might be excused, but `suo motu'; and such an application, it is contended, is a condition to the exercise of jurisdiction under that proviso. Repelling this submission, the Court held that the section confers power on the Election Commissioner to condone the delay suo motu.
10. In David Pillai v. The Settlement Officer, Madurai (supra), the Division Bench (consisting of the Officiating Chief Justice S.Mohan (as he then was) and S.Ramalingam, J) after detailed examination of the scheme of the Act held that the Director has power to revise or cancel the order passed by the Settlement Officer in suo motu exercise of power under Section 5(2) of the Act and the period of limitation prescribed by the rules. The Bench observed:
" Therefore, when a power is conferred upon the Director under Section 5(2) of the Act to revise or cancel an order passed by the Settlement Officer, such a power could be exercised suo motu. The exercise of that power by the Director would not in any manner be vitiated merely because the power is sought to be exercised after a considerable length of time. If one were to bear in mind the principles laid down by the Supreme Court in the decision cited supra and if the orders made by the competent authorities under the Act are only for the limited purposes of the Act to identify a person, who is liable to pay the tax or the kist, as the case may be, and no adjudication regarding title to the land is involved, then the conferment of power under Section 5(2) of the Act to revise suo motu any order passed by his subordinate without the limitation of time can very well be understood and justified. If the Director of Survey and Settlements comes to know that, contrary to the Scheme of the Act or due to misrepresentation on fraud played, patta had been granted to a person under the relevant provisions of the Act, then to set right that mistake, the Director should be enabled to exercise his powers so as to effectuate the Scheme of the Act and to implement the purpose behind the Act. In view of the above conclusion, the contention of the appellant that the Director of Survey and Settlements has no jurisdiction to entertain the appeal beyond a period of two months and the orders of the Settlement Officer are deemed to have become final for all purposes cannot be sustained."
11. The judgment in David Pillai's case was brought to the knowledge of the Division Bench which heard R.Ramadoss's case, and the Division Bench held that the question that arose in David Pillai's case was only with regard to condonation of delay and therefore, the observations made in regard to Section 5(2) are not binding. A reading of the judgment in David Pillai's case makes us to conclude differently. Of course, the question was, whether the appellate authority ought to have condoned the delay, and the Division Bench found that there was no reason for interference. Then, they proceeded to look at the same question from a different prespective and in that context, they construed Section 5(2) and held that considering the purpose of the Act, the suo motu revisionary power must be held to exist to effectuate the scheme of the Act and to implement the purpose behind the Act. The reasons which prevailed upon the Division Bench in David Pillai's case are in consonance with the observations of the Supreme Court in the judgments mentioned above, though they arose under different enactments.
12. In M.Veeraswamy's case, cited supra, the Division Bench repelled the contention that the Board has no jurisdiction to suo motu exercise its revisional power under Section 7(c) and 7(d) of the Act and held as follows:
''7. It is next contended that the Board has no jurisdiction to suo motu exercise its revisional powers under S.7(c) and S.7(d) of the Act. The argument proceeds that the Board could exercise such powers only if there is an application before it for revising the order of lower authority. There is no substance in this contention also. The Section does not contemplate any specific application being filed under Section 7(c) and 7(d) of the Act. The Section confers powers on the Board to cancel or set aside any orders passed by the lower authority and certainly it is open to the Board to exercise the said power suo motu whenever it is found necessary."
13. In the case of R.Ramadoss (supra) the Divisions Bench (consisting of Nainar Sundaram and Thanikachalam, JJ) held that with reference to the exercise of power under Section 5(2) of the Act, there has been a delineation of the same by the rules framed pursuant to the power under Section 67(2)(b) of the Act. It must be taken that it is the only way and method in which the power of revision under Section 5(2) of the Act could be exercised by the Director and he has no power to act suo motu. It was held that the rules framed under the statute must be treated for all purposes of construction of powers or obligations, as if they are in the statute itself, and are to be of the same effect as if adumbrated in the statute itself. We are unable to agree with the view taken by the learned Judges of the Division Bench in the aforesaid case. It is no doubt true that the rules could be used as aid to interpretation of the provisions of the Parent Act, but only where the meaning of the Act is ambiguous (see Hanlon v. Law Society, 1980 (2) ALL E.R
199). The provisions of Sections 5 and 7 of the Act confer extremely broad powers on the Director and the Board respectively for correcting the mistakes committed by the lower authorities and for the purpose of effectuating the Scheme of the Act and implementing the purpose behind the Act. We are inclined to agree with the view taken in David Pillai's case and M.Veeraswamy's case (supra) that the Director of Settlement as well as the Board of Revenue have suo motu powers to interfere with the orders passed by the lower authorities. The reference is answered accordingly.
Registry is directed to place the papers of the writ appeal before the appropriate Bench for disposal in accordance with law. js/pv To The Special Commissioner and Director of Survey and Settlement Chepauk Chennai 5.